MacLean v. DHS: MSPB Agency Response To MacLean Petition For Review - August 2, 2010

ROBERT J. MACLEAN v.
DEPARTMENT OF HOMELAND SECURITY

Docket # SF-0752-06-0611-I-2
Response to Appellant's Corrected PFR dated 6/21/2010
Summary Page
Case Title : ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
Docket Number : SF-0752-06-0611-I-2
Pleading Title : Response to Appellant's Corrected PFR dated 6/21/2010
Filer's Name : Eileen Dizon Calaguas, Esq.
Filer's Pleading Role : Agency Representative
Details about the supporting documentation
N/A
Pleading Number : 2010017114 Submission date : 2010-08-02 19:26:41 Confirmation Number: 1444054210 page 1 of 31
Pleading Interview 6
Uploaded Pleading Text Document 7
ROBERT J. MACLEAN, ) DOCKET NUMBER: 7
Characterizing his unauthorized disclosure of Sensitive Security Information (SSI) as a mistake" or good faith
confusion," Appellant now urges the Board to accept his re-characterization of prior admissions as just another
misunderstanding on his p... 7
II. STANDARD OF REVIEW 8
The Board may only grant a petition for review when (1) new and material evidence is available that, despite due
diligence, was not available when the record closed; and (2) the decision of the judge is based on an erroneous
interpretation of statute... 8
III. STATEMENT OF PERTINENT FACTS 8
Appellant was a Federal Air Marshal (FAM), a law enforcement officer required by federal regulation and Agency
policy to protect the disclosure of Sensitive Security Information (SSI) to only those with a regulatory need to know.
Initial Appeal File ... 8
Cancellation of all Las Vegas RON (Remain Overnight) missions up to August 9, 2003 was SSI. MacLean v. Dep't of
Homeland Sec., 343 F.3d 1143 (9th Cir. 2008); Initial Appeal File 2 (IAF-2), Tab 17 at Ex. A (Agency Final Order). 8
By sworn affidavit, Appellant admitted to Agency investigators that he disclosed to a news reporter, on or about July
29, 2003, that all Las Vegas RON missions up to August 9, 2003 would be cancelled. IAF, Tab 4, Subtab 4J at p. 11. He
affirmed this... 8
A news reporter is not a person with a regulatory need to know SSI, and Appellant did not have authorization from
the Agency to make the above-referenced disclosure of SSI. IAF-1, Tab 4, Subtab 4C at p. 3 and Subtab 4M. 8
Prior to making the final decision to remove Appellant, the deciding official within the Federal Air Marshal Service
(FAMS), Frank Donzanti, considered the relevant Douglas factors in accordance with the Agency's policy (IAF-1, Tab
4, Subtab 4Q at p. ... 9
IV. ARGUMENT 11
First, this Board should not consider any purportedly new evidence that Appellant proffered by Appellant after the
close of hearing, because, in fact, such evidence was not new but available to Appellant prior to hearing. Second, the
Administrative ... 11
A. Appellant fails to provide any new and material evidence. 12
In support of his Petition, Appellant requested to supplement the record with transcripts of his May 4, 2003 interview
conducted by Agency investigators, and Appellant also sought to include an undated organizational chart. This post-
hearing request... 12
Appellant cannot meet the procedural requirement to establish that such evidence is new" within the meaning of
Section 1201.113. To illustrate, Appellant had possession of the proffered transcripts since about April 12, 2006. See
Petition for Revi... 12
B. Appellant fails to show any error in the exclusion of evidence. 12
Likewise, the Administrative Judge properly excluded additional evidence proffered well-after the record closed, and
the Board should leave such a procedural ruling undisturbed. IAF-2, Tab 83 at pp. 8-11 (Initial Decision); see Grassell
v. Dep't of ... 12
Through cross-examination of Donzanti, however, Appellant had the prior opportunity to introduce such evidence in
support of his theory that Donzanti acted as an instrument for then FAMS Director Thomas Quinn's alleged
retaliatory motive. IAF-2, Tab... 13
The Administrative Judge also properly excluded other evidence proffered by Appellant, which Appellant
inappropriately referred to in support of his Petition. For example, Appellant repeatedly cited to deposition testimony
that was rejected by the A... 13
Finally, any further reliance upon Director Quinn's and Appellant's own deposition testimony is inappropriate at this
procedural stage. See, e.g., PFRF, Tab 3 at pp. 11-13, 49. Such deposition testimony is not new" as required by Section
1201.113,... 13
C. The Administrative Judge properly found that charge did not require the Agency to prove intent. 14
In short, Appellant appears to argue that the Administrative Judge framed the Agency's disciplinary charge
incorrectly, by removing an intent element that the Ninth Circuit somehow added. Appellant, however, misinterprets
the Ninth Circuit's dicta, ... 14
Table of Contents
While the Ninth Circuit mentioned Appellant's oft-repeated contention that he held a good faith belief" that the
information he disseminated did not qualify as SSI, the court did so only within the context of discussing Appellant's
affirmative defen... 14
Maclean is not entitled to procedural due process. The order was the result of an agency adjudication . . . and does not
directly deprive him of any liberty or property interests in his position as a Federal Air Marshal. It merely designates
informa... 14
MacLean, 343 F.3d at 1131-32 (emphasis added). After the Ninth Circuit's ruling, the Board resolved any remaining
ambiguity and, as law of this case, found that Appellant's misconduct was not protected by the WPA: Appellant's
disclosure in violatio... 13
The Agency charged Appellant with the unauthorized disclosure of sensitive security information." IAF-2, Tab 64 at
p. 3 (Order & Summary of Prehearing Conf., dated Oct. 8, 2009). The accompanying specification to this disciplinary
charge quoted di... 13
The disciplinary charge here does not require a showing of intent. See, e.g., Hamilton v. U.S. Postal Serv., 71 M.S.P.R.
347, 333-37 (1996) (holding that a charge of failure to follow instructions does not turn on proof of intent). As stated,
the c... 13
Therefore, Appellant's attempt to characterize his SSI disclosure as inadvertent does not change the conclusion already
made by the Ninth Circuit, that Appellant violated the applicable regulations. Similar to a charge of failure to follow
instructi... 16
Rather, and as correctly determined by the Administrative Judge, evidence of intent is relevant only to the penalty
determination. In Hamilton, the Board found that when an agency proves that an employee's failure to follow
instructions was intentio... 16
In this case, not only was the disciplinary charge clear, specific, and fully-described by additional allegations set forth
in the accompanying specification, Appellant clearly understood the charge as he both repeated and admitted (again)
to the und... 16
Reason 3 charges FAM McClean [sic] with unauthorized disclosure of sensitive security information," when on July
3, 2003, he disclosed to the media" that all Las Vegas FAMS were sent a text message to their government issued
mobile phones that all ... 17
IAF-1, Tab 4, Subtab 4C at p. 3 (emphasis added); see, e.g., Lockett v. U.S. Marine Corps, 37 M.S.P.R. 427 (1988)
(appellant's response and defense were viewed as confirming the agency's version of the charge). 17
In turn, the Administrative Judge properly determined the essence of this charge and so informed the parties prior to
hearing. As noted by the Administrative Judge, to prove this charge, the Agency was required to show that Appellant
engaged in the ... 17
D. The Administrative Judge correctly found that the Agency proved the disciplinary charge by preponderant
evidence. 17
The record fully supports the Administrative Judge's finding that the Agency met its burden to prove its sole
disciplinary charge. Appellant's own hearing testimony was sufficient to meet the preponderance standard. To
illustrate, Appellant testifi... 17
- Prior to his misconduct, Appellant received training on the Agency regulations and policy for maintaining the
confidentiality of Sensitive Security Information. Tr. at 69-70 (direct testimony), 100; IAF-2, Tab 83 at p. 12; also see
IAF-1,... 17
- Prior to his misconduct, Appellant understood that disclosing the known absence of a Federal Air Marshal on a
particular flight created a harm. Tr. at 104; IAF-2, Tab 83 at p. 13; also see AF, IAF-1, Tab 4 at Subtab 4T. 17
- Despite a new denial that he informed a news reporter that RON missions out of Las Vegas were being cancelled,
Appellant intentionally sought out that reporter and expected the reporter to publicize the information that Appellant
provided... 18
- Appellant conceded that that news reporter was not authorized to receive Sensitive Security Information. Tr. at 106;
IAF-2, Tab 83 at p. 19; also IAF-1, Tab 4 at Subtab 4M. 18
- Appellant showed no remorse for having made his disclosure to the news reporter. Tr. 109; IAF-1, Tab 4, Subtab 4J at
p. 14; Hearing Ex. 8 and also Hearing Ex. A at p. 2 ('But I have no regrets. I did the right thing,'" said Mr.
MacLean . ... 18
Appellant's attempts to re-cast his repeated admissions are of no consequence and, as further discussed below, only
show that the deciding official properly afforded little weight to the so-called accidental" nature of Appellant's
disclosure of SSI. ... 18
Table of Contents
Indeed, the Administrative Judge's credibility determination of Appellant is well-supported by the record of evidence
to which the Administrative Judge cited with specificity.1F To illustrate, the inconsistencies in Appellant's statements
are easi... 18
Tr. at 109-110. As explained in Hillen v. Department of Army, 33 M.S.P.R. 433 (1987), the very fact that an
inconsistency exists raises doubt as to the truthfulness of both statements. 33 M.S.P.R. at 438. 19
To further illustrate, Appellant's proclaimed unawareness of the SSI-nature of his disclosure is contradicted by his own
explanation of his SSI training and understanding of what constitutes Sensitive Security Information. In describing
how he knew ... 19
In this case, the Administrative Judge clearly identified the factual questions in dispute, summarized the evidence on
each disputed question, stated the version he believed, and explained in detail why he found the Agency's version
more credible tha... 20
E. The Administrative Judge correctly deferred to the Agency's choice of penalty-removal, which was within the
parameters of reasonableness. 20
The Agency's penalty determination is entitled to deference and should be reviewed only to determine whether it is
within the parameters of reasonableness. Payne v. U.S. Postal Serv., 72 M.S.P.R. 646, 630 (1996). The Board's function
with regard to... 20
1. The Administrative Judge correctly found a nexus to the efficiency of the service. 20
That a nexus exists between Appellant's misconduct and his removal to promote the efficiency of the service cannot
seriously be disputed. Nonetheless, Appellant argues that the Administrative Judge implicitly found that it was his
cited misconduct t... 20
Appellant's rationalization defies common sense, and he contradicts himself. See Hillen v. Dep't of Army, 33 M.S.P.R.
at 438. Appellant emphatically testified, If I told somebody that a particular flight was not going to have any
protection on it, ... 20
In turn, the Administrative Judge properly found that Agency resources were necessarily reallocated to address those
very flights that Appellant disclosed would no longer have FAM coverage aboard. IAF-2, Tab 83 at pp. 26-27. At
hearing, the decidin... 21
The Administrative Judge correctly found that the deciding official considered the relevant factors and that a
mitigated penalty was unwarranted. 21
The record fully supports a finding that the deciding official considered the relevant Douglas factors. The Initial
Decision correctly noted that the deciding official considered the nature and seriousness of the offense, inasmuch as
Appellant's dis... 21
The Ninth Circuit already rejected Appellant's excuse that he remained unaware that what he disclosed constituted
Sensitive Security Information because it lacked any SSI marking. With a simple common-sense observation, one
justice commented from th... 21
Appellant himself echoed this same security assessment when he testified that if he told somebody that a particular
flight was not going to have any FAM protection, that that endangered that specific flight. Tr. at 104. And yet, while
recognizing t... 22
The absence of any malice or gainful motive or any repeated disclosures of SSI failed to mitigate the penalty to a lesser
penalty and rightfully so. Tr. at 16. Appellant was a law enforcement officer whom, by virtue of his position, the public
tru... 22
The record further shows that the deciding official properly considered the other relevant Douglas factors and found
them to be mitigating: that Appellant lacked any prior discipline, his work history, his length of service, and his
satisfactory per... 23
And, while other Federal Air Marshals from other FAMS field offices may have disclosed Sensitive Security
Information, the circumstances in which they did so was never known to the deciding official at the time of his
decision and more significantly,... 23
The Administrative Judge properly distinguished the remaining alleged comparators. In the case of J.S., this employee
disclosed his and his partner's FAM identity to a fellow aircraft passenger. IAF-2, Tab 43, Subtab MM (Appellant's
Response to Sta... 23
While another comparator, A.R., made his disclosure on the Internet, his conduct was dissimilar to Appellant because
he posted only his speculation that FAMS coverage for a particular flight route was to be cancelled. IAF-2, Tab 42 at
Subtab F (Appe... 24
Table of Contents
Finally, the short delay in the disciplinary process did not undermine the fact that the deciding official understandably
lost trust in Appellant. See, e.g., Wilkes v. Veterans' Admin., 6 M.S.P.R. 732 (1981) (removal sustained, even in light of
good... 24
F. Appellant failed to prove a prohibited personnel practice. 23
The record further shows that Appellant failed to provide any of his affirmative defenses. 23
1. The Agency's interest in protecting SSI outweighs other interests. 23
The Administrative Judge properly determined that when balancing Appellant's free speech interest with the needs of
the Agency, as a governmental employer, to attempt to perform its important public function, the Agency must have
wide latitude in ma... 23
Respectfully Submitted, 29
/s/ Eileen Dizon Calaguas 29
Eileen Dizon Calaguas 29
Agency Representative 29
Certificate of Service 30
Table of Contents
ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
Docket # SF-0752-06-0611-I-2
Response to Appellant's Corrected PFR dated 6/21/2010
Online Interview
1. Would you like to enter the text online or upload a file containing the pleading?
See attached pleading text document
2. Does your pleading assert facts that you know from your personal knowledge?
No
1
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD
__________________________________________
ROBERT J. MACLEAN, ) DOCKET NUMBER:
Appellant, ) SF-0752-06-0611-I-2
)
v. )
)
DEPARTMENT OF HOMELAND SECURITY, )
TRANSPORTATION SECURITY )
ADMINISTRATION, )
Agency. )
____________) August 2, 2010

AGENCYS RESPONSE TO APPELLANTS PETITION FOR REVIEW
The Agency opposes Appellants Petition for Review in its entirety.
1
I. INTRODUCTION
The Administrative
Judge properly found that this law enforcement officer engaged in serious misconduct when he
purposely sought out a news reporter to disclose confidential information about covert Agency
security missions. The Initial Decision to uphold Appellants removal is based on a correct
interpretation of statute and regulation. Moreover, the Administrative Judges comprehensive
analysis is well-supported by the extensive record, which in no way should be supplemented
with evidence that was readily available prior to the records closing.
Characterizing his unauthorized disclosure of Sensitive Security Information (SSI) as a
mistake or good faith confusion, Appellant now urges the Board to accept his re-
characterization of prior admissions as just another misunderstanding on his part. The
evidentiary record does not support Appellants rhetoric. There is no basis to overturn the Initial
1
Cites herein are made to Appellants Corrected Petition for Review, filed June 21, 2010. The Agency
does not oppose this late submission to the extent that Appellant provides more accurate citations to the
record.
2
Decision because it is fully supported by the record below. There is no reason for the Board to
overturn its own precedence or otherwise ignore a Court of Appeal decision, both of which
establish the law of the case here.
II. STANDARD OF REVIEW
The Board may only grant a petition for review when (1) new and material evidence is
available that, despite due diligence, was not available when the record closed; and (2) the
decision of the judge is based on an erroneous interpretation of statute and regulation. 5 C.F.R.
1201.115(d).
III. STATEMENT OF PERTINENT FACTS
1. Appellant was a Federal Air Marshal (FAM), a law enforcement officer required
by federal regulation and Agency policy to protect the disclosure of Sensitive Security
Information (SSI) to only those with a regulatory need to know. Initial Appeal File 1 (IAF-1),
Tab 4 at Subtabs 4M, 4N, 4T, 4U (Agency File); Hearing Exs. 2 and 3.
2. Cancellation of all Las Vegas RON (Remain Overnight) missions up to August 9,
2003 was SSI. MacLean v. Dept of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008); Initial
Appeal File 2 (IAF-2), Tab 17 at Ex. A (Agency Final Order).
3. By sworn affidavit, Appellant admitted to Agency investigators that he disclosed
to a news reporter, on or about July 29, 2003, that all Las Vegas RON missions up to August 9,
2003 would be cancelled. IAF, Tab 4, Subtab 4J at p. 11. He affirmed this admission when
responding to the proposal to remove him. IAF-1, Tab 4, Subtab 4C at p. 3.
4. A news reporter is not a person with a regulatory need to know SSI, and
Appellant did not have authorization from the Agency to make the above-referenced disclosure
of SSI. IAF-1, Tab 4, Subtab 4C at p. 3 and Subtab 4M.
3
5. Prior to making the final decision to remove Appellant, the deciding official
within the Federal Air Marshal Service (FAMS), Frank Donzanti, considered the relevant
Douglas factors in accordance with the Agencys policy (IAF-1, Tab 4, Subtab 4Q at p. 6), as
follows:
a. The nature and seriousness of the offense, and its relation to the employees duties,
position, and responsibilities:
Well, he gave information on ouron our flights, a particular
group of flights that were not covered, which created a
vulnerability. As soon as he gave that information out to the
media, it created a vulnerability within the aviation system. And it
set us up for a possible another 9/11 incident. . . . It gave people
that would want to do us harm information that certain flights
werent covered by Air Marshals. And if you look at that, it makes
the system vulnerable, especially with flights leaving out of Las
Vegas, knowing that certain flights arent covered, long-distance
flights are not being covered by Air Marshals.

Tr. at 15:12-24.

b. The employees job level and type of employment:

As a Federal Air Marshal hes held to a higher standard of public
trust . . . and hes in a public safety position. And his
responsibility is to safeguard information, such as SSI.

Tr. at 17:22-25.
c. The employees past disciplinary record:
I also considered that you have no previous discipline with the
FAMS . . . .

IAF-1, Tab 4, Subtab 4A at p. 2.
d. The employees past work record:
I considered your combined 14 years of military and civilian
federal service, including your 5 years as a Federal Air Marshall . .
4
. . and that your previous performance appraisals were

satisfactory.

IAF-1, Tab 4, Subtab 4A at p. 2.
e. The effect of the offense upon the employees ability to perform at a satisfactory
level, and its effect upon supervisors:
I lost confidence in the fact that he could not be trusted with SSI
in any FAM position, or actually, any administrative position in
TSA. You have access to SSI on a daily basis.

Tr. at 21:23-22:1.

f. Consistency of the penalty with those imposed upon other employees for the same or
similar offenses:
I would be in the position, but we didnt have any incidents [of
others who may have disclosed sensitive security information
without authorization] when I was there.

Tr. at 19:6-11.

g. The notoriety of the offense or its impact upon the reputation of the Agency;
[P]eople would tend to have less confidence in the ability of the

Federal Air Marshal Service to protect the skies. . . . And I think
this kind of undermined what were all about.

Tr. at 19:19-25.

h. The clarity with which the employee was on notice of any rules that were violated in
committing the offense or had been warned about the conduct in question.
Well, he should have been aware of it. He hadthe two years in
the FAM Service when this occurred, he had ample opportunity to
understand that policy through the Academy, through our
extensive legal training that we have in the field offices. So many
hours of legal training that thats provided. When you first come
on the job, youre given a briefing. And its very common
knowledge and very basic. If nothing else, a Federal Air Marshal
did not divulge schedules or anything that has to do with flight
schedules. Its common knowledge for every FAM, FAM wide. It
5
wouldnt be some obscure security regulation that you would

really have to study up on it to understand it. This isthis is just
very basic, very common.

Tr. at 20:6-19; also IAF-1, Tab 4, Subtab 4T.

i. Potential for the employees rehabilitation:

I did, but he expressed no remorse throughout the proceedings.
Even even to this date here, he has no remorse whatsoever. So I
did consider that in my decision.

Tr. at 20:22-24.
j. Mitigating circumstances surrounding the offense:
He thought there was a vulnerability created in the system when
there waswhen those types of missions were dropped, when they
were not covered. But he is not in a positionhe does not have all
information. Hes not in a position to make that kind of decision.
There are other factors that go into that decision he would be
unaware of.
Tr. at 21:9-16.
k. The adequacy and effectiveness of alternative actions to deter such conduct or
improve performance in the future by the employee or others.
I found nothing at all that could accommodate him, should I
decide to give him some kind of lesser punishment. In a
practicality sense, there was nowhere to put him . . . and I think we
all lost confidence in his ability at that point.

Tr. at 22:2-6.

IV. ARGUMENT
First, this Board should not consider any purportedly new evidence that Appellant
proffered by Appellant after the close of hearing, because, in fact, such evidence was not new but
available to Appellant prior to hearing. Second, the Administrative Judge properly defined the
Agencys disciplinary charge and its required elements, consistent with the law of the case as
6
established by the Ninth Circuit and a prior Board decision. Third, the record fully supports a
finding that the Agency established, by preponderant evidence, the requisite nexus; as such, the
Administrative Judge correctly deferred to the Agencys reasonable disciplinary penalty that was
reached only after careful consideration of the relevant Douglas factors. Fourth and finally,
Appellant failed to prove his affirmative defenses.
A. Appellant fails to provide any new and material evidence.
In support of his Petition, Appellant requested to supplement the record with transcripts
of his May 4, 2005 interview conducted by Agency investigators, and Appellant also sought to
include an undated organizational chart. This post-hearing request to supplement should be
denied in its entirety.
Appellant cannot meet the procedural requirement to establish that such evidence is
new within the meaning of Section 1201.115. To illustrate, Appellant had possession of the
proffered transcripts since about April 12, 2006. See Petition for Review File (PFRF), Tab 2 at
p. 71 (Appellants Supplement to PFR). Also, because his misconduct and discipline took place
in 2003 and 2006 respectively, any proffered organizational chart must cover that same period to
be relevant, and as such, Appellant should have offered such an organizational chart during the
2009 hearing in this matter. Thus, Appellants post-hearing request to supplement the record
must be denied.
B. Appellant fails to show any error in the exclusion of evidence.

Likewise, the Administrative Judge properly excluded additional evidence proffered
well-after the record closed, and the Board should leave such a procedural ruling undisturbed.
IAF-2, Tab 83 at pp. 8-11 (Initial Decision); see Grassell v. Dept of Transp., 40 M.S.P.R. 554,
563-64 (1989) (Evidence that is untimely for the Administrative Judge because it is not new and
7
material will also be untimely for the Board in a petition for review). By way of a post-hearing
motion, Appellant attempted to introduce evidence about alleged misconduct by deciding official
Frank Donzanti.
Through cross-examination of Donzanti, however, Appellant had the prior opportunity to
introduce such evidence in support of his theory that Donzanti acted as an instrument for then
FAMS Director Thomas Quinns alleged retaliatory motive. IAF-2, Tab 83 at p. 11. He failed to
question Donzanti about Director Quinns alleged retaliatory motive and instead brought a post-
hearing motion in an effort to establish that Donzanti received a demotion or reassignment.
PFRF, Tab 3 at pp. 39-40 (Corrected PFR). Importantly, the Administrative Judge noted that
Donzanti held a different position at the time of hearing than at the time of his removal decision,
and thus, that change in position was irrelevant. IAF-2, Tab 83 at p. 10.
The Administrative Judge also properly excluded other evidence proffered by Appellant,
which Appellant inappropriately referred to in support of his Petition. For example, Appellant
repeatedly cited to deposition testimony that was rejected by the Administrative Judge and
removed from the record. See IAF-2, Tab 70 at p. 2 (Order, dated Oct. 27, 2009); compare
PFRF, Tab 3 at p. 49 (citing to Ex. F, which was rejected by the Administrative Judge).
Appellant neglected to explain how the Administrative Judge erred in rejecting such evidence,
and indeed, there is no basis to disturb the Administrative Judges evidentiary ruling. Appellant
had the opportunity to call deponents as hearing witnesses, and of these deponents, he only chose
to call the deciding official and himself as hearing witnesses. See IAF-2, Tab 70 at p. 4.
Finally, any further reliance upon Director Quinns and Appellants own deposition
testimony is inappropriate at this procedural stage. See, e.g., PFRF, Tab 3 at pp. 11-13, 49.
Such deposition testimony is not new as required by Section 1201.115, and even if admitted,
8
deposition transcripts should carry little or no weight when compared to live testimony. See,
e.g., Wallace v. Dept of Health & Human Servs., 89 M.S.P.R. 178, 15 (2001) (Board generally
favors live testimony over hearsay.).
C. The Administrative Judge properly found that charge did not require the
Agency to prove intent.

In short, Appellant appears to argue that the Administrative Judge framed the Agencys
disciplinary charge incorrectly, by removing an intent element that the Ninth Circuit somehow
added. Appellant, however, misinterprets the Ninth Circuits dicta, which does not affect the
Agencys burden of proof to establish that Appellant engaged in the charged misconduct.
In MacLean v. Department of Homeland Security, 543 F.3d 1145, 1150 (Sept. 16, 2008),
the Ninth Circuit found that information falling within the Agencys regulatory definition is
automatically considered sensitive security information. IAF-2, Tab 83 at p. 6. This Board
then opined in its interlocutory appeal decision: We find that the agency can meet its burden of
proof on the charge because where, as here, a federal court has determined that information
relevant to a Board appeal constituted SSI, that determination is binding in the Board
proceeding. MacLean v. Dept of Homeland Sec.,2009 M.S.P.B. 114, 18(June 22, 2009).
While the Ninth Circuit mentioned Appellants oft-repeated contention that he held a
good faith belief that the information he disseminated did not qualify as SSI, the court did so
only within the context of discussing Appellants affirmative defense under the Whistleblower
Protection Act (WPA), which requires that the employee have a reasonable belief. 5 U.S.C.
2302(b)(8).
Maclean is not entitled to procedural due process. The order was the
result of an agency adjudication . . . and does not directly deprive him of
any liberty or property interests in his position as a Federal Air Marshal.
It merely designates information as sensitive security information,
9
which has only a tangential relation to MacLeans interest in his position

as an Air Marshal. MacLean may still contest his termination before the
MSPB, where he may raise the Whistleblower Protection Act and
contend that the lack of clarity of the TSAs 2003 sensitive security
information regulations is evidence MacLean disseminated the text
message under a good faith belief the information did not qualify as
sensitive security information.

MacLean, 543 F.3d at 1151-52 (emphasis added). After the Ninth Circuits ruling, the Board
resolved any remaining ambiguity and, as law of this case, found that Appellants misconduct
was not protected by the WPA: Appellants disclosure in violation of the regulations governing
SSI . . . cannot give rise to whistleblower protection. MacLean, 2009 M.S.P.B. 114 at 33.
The law of the case doctrine limits re-litigation of an issue once that issue has been decided. . .
in a different stage of the same litigation. Philips v. Dept of Navy, 111 M.S.P.R. 557, fn. 2
(2009) citing Nease v. Dept of Army, 103 M.S.P.R. 118, 10 (2006). Therefore, Appellants
alleged good faith belief is relevant only when considering the Douglas factors, as further
discussed below.
The Agency charged Appellant with the unauthorized disclosure of sensitive security
information. IAF-2, Tab 64 at p. 5 (Order & Summary of Prehearing Conf., dated Oct. 8,
2009). The accompanying specification to this disciplinary charge quoted directly from the
sworn affidavit that Appellant provided to Agency investigators, wherein he voluntarily admitted
to the specified allegations: For the July 29, 2003 article, I informed Brock Meeks that all Las
Vegas FAMs were sent a text message to their Government issued mobile phones that all RON
(Remain Overnight) missions up to August 9 would be canceled. Compare IAF-1, Tab 4,
Subtab 4A at p. 1 and Subtab 4J at p. 11.
The disciplinary charge here does not require a showing of intent. See, e.g., Hamilton v.
U.S. Postal Serv., 71 M.S.P.R. 547, 555-57 (1996) (holding that a charge of failure to follow
10
instructions does not turn on proof of intent). As stated, the charge refers to the Agencys
regulations, and these regulations make no distinction between intentional and negligent
disclosures of Sensitive Security Information; rather, the SSI regulations call for the protection of
such information from any unauthorized disclosures to those individuals without a regulatory
need to know. See 14 C.F.R. Part 191 (West 2001).
Therefore, Appellants attempt to characterize his SSI disclosure as inadvertent does not
change the conclusion already made by the Ninth Circuit, that Appellant violated the applicable
regulations. Similar to a charge of failure to follow instructions, the unauthorized disclosure of
SSI does not turn on proof of intent; indeed, it is not an element of the Agencys burden of proof.
Rather, and as correctly determined by the Administrative Judge, evidence of intent is
relevant only to the penalty determination. In Hamilton, the Board found that when an agency
proves that an employees failure to follow instructions was intentional rather than merely
negligent, then the agency is free to use that fact as an aggravating factor in the penalty selection.
71 M.S.P.R. 547. Likewise, in Quarters v. Department of Veterans Affairs, 97 M.S.P.R. 511 at
4, 5 (2004), the accidental nature of the appellants behavior pulling out his government
credit card of a personal purchase by mistake was only a mitigating factor. In that case, the
charge of unauthorized use of government property was sustained when the appellant admitted
that he made the personal purchase on his credit government credit card. Id.
In this case, not only was the disciplinary charge clear, specific, and fully-described by
additional allegations set forth in the accompanying specification, Appellant clearly understood
the charge as he both repeated and admitted (again) to the underlying facts in response to his
proposed removal:
11
Reason 3 charges FAM McClean [sic] with unauthorized disclosure of

sensitive security information, when on July 3, 2003, he disclosed to the
media that all Las Vegas FAMS were sent a text message to their
government issued mobile phones that all remain overnight missions up
through August 9, 2003 would be canceled, or words to that effect. The
underlying factual predicate supporting each of the reasons is not
contested by FAM McClean [sic].
IAF-1, Tab 4, Subtab 4C at p. 3 (emphasis added); see, e.g., Lockett v. U.S. Marine Corps, 37
M.S.P.R. 427 (1988) (appellants response and defense were viewed as confirming the agencys
version of the charge).
In turn, the Administrative Judge properly determined the essence of this charge and so
informed the parties prior to hearing. As noted by the Administrative Judge, to prove this
charge, the Agency was required to show that Appellant engaged in the conduct with which he
was charged. IAF-2, Tab 64 at p. 5 (Order & Summary of Prehearing Conference, dated Oct. 8,
2009, citing to Otero v. U.S. Postal Serv., 73 M.S.P.R. 198 (1997)).
D. The Administrative Judge correctly found that the Agency proved the
disciplinary charge by preponderant evidence.

The record fully supports the Administrative Judges finding that the Agency met its
burden to prove its sole disciplinary charge. Appellants own hearing testimony was sufficient to
meet the preponderance standard. To illustrate, Appellant testified and the Administrative Judge
cited to the following:
Prior to his misconduct, Appellant received training on the Agency
regulations and policy for maintaining the confidentiality of
Sensitive Security Information. Tr. at 69-70 (direct testimony),
100; IAF-2, Tab 83 at p. 12; also see IAF-1, Tab 4 at Subtab 4N.

Prior to his misconduct, Appellant understood that disclosing the
known absence of a Federal Air Marshal on a particular flight
created a harm. Tr. at 104; IAF-2, Tab 83 at p. 13; also see AF,
IAF-1, Tab 4 at Subtab 4T.

12
Despite a new denial that he informed a news reporter that RON

missions out of Las Vegas were being cancelled, Appellant
intentionally sought out that reporter and expected the reporter to
publicize the information that Appellant provided. Tr. at 104-106,
120-121; IAF-2, Tab 83 at p. 17.

Appellant conceded that that news reporter was not authorized to
receive Sensitive Security Information. Tr. at 106; IAF-2, Tab 83
at p. 19; also IAF-1, Tab 4 at Subtab 4M.

Appellant showed no remorse for having made his disclosure to the
news reporter. Tr. 109; IAF-1, Tab 4, Subtab 4J at p. 14; Hearing
Ex. 8 and also Hearing Ex. A at p. 2 (But I have no regrets. I did
the right thing, said Mr. MacLean . . . .); IAF-1, Tab 83 at p. 18.
Appellants attempts to re-cast his repeated admissions are of no consequence and, as further
discussed below, only show that the deciding official properly afforded little weight to the
so-called accidental nature of Appellants disclosure of SSI. Tr. at 16.
Indeed, the Administrative Judges credibility determination of Appellant is well-
supported by the record of evidence to which the Administrative Judge cited with specificity.
2
Q. Andand in responding orin responding to the proposed removal,
you didn't express any regret or remorse for having made the disclosure
that you did, did you?

To illustrate, the inconsistencies in Appellants statements are easily observed; one need only
compare Appellants 2005 sworn affidavit and his 2006 deposition testimony regarding his lack
of remorse (IAF-1, Tab 4, Subtab 4J at p. 13; Hearing Ex. 8 at p. 2), with the self-serving regret
(for his family) that he expressed at the 2009 hearing.
A. Thats what I said in my testimony, but it doesnt mean I have remorse
for this day.
Q. Are you saying today that youre remorseful?
2
Contrary to Appellants assertions (PFRF, Tab 3 at p. 20), the Administrative Judge provided citations to
the hearing. That the Administrative Judge cited to the audio recording (hearing compact disc) rather
than the more expensive written transcripts of the hearing is irrelevant.
13
A. I have a lot of regret and remorse of what I put myof what this has
put my family through. I didnt realize my actions were goingwere
going to have these consequences years later.
Q. But at the time
A. So
Q. But that's today, and it wasnt at that time that youwhen you had the
opportunity to respond directly to Mr. Donzanti; isnt that right?
A. I believed there wasthere was a violation of law and a danger toto
public safety and national security at the time.
Q. So at the time you didnt have any regrets?
A. No, maam, I didnt have any regrets when youwhenwhen you
deposed me or the investigators spoke to me about my disclosure.
Tr. at 109-110. As explained in Hillen v. Department of Army, 35 M.S.P.R. 453 (1987), the very
fact that an inconsistency exists raises doubt as to the truthfulness of both statements. 35
M.S.P.R. at 458.
To further illustrate, Appellants proclaimed unawareness of the SSI-nature of his
disclosure is contradicted by his own explanation of his SSI training and understanding of what
constitutes Sensitive Security Information. In describing how he knew to maintain the
confidentiality of his own FAM schedule (Tr. at 69-71, 100-102), Appellant corroborated the
deciding officials testimonythat Appellant handled SSI on a daily basis (Tr. at p. 21) and that
the SSI-nature of FAMS scheduling was basic, common knowledge (Tr. at p. 19). Appellants
repeated accusations of others making unauthorized disclosures also show how, at the time of
his own unauthorized disclosure, he knew how to identify SSI even without any labeling. Tr.
111-112; IAF-1, Tab 4, Subtab 4J at p. 12. Hillen teaches that inherent improbabilities may be
rejected, and based on the record evidence here, there is little likelihood that Appellant was
unaware of the SSI nature of his disclosure to a news reporter. 35 M.S.P.R. at 458.
14
In this case, the Administrative Judge clearly identified the factual questions in dispute,
summarized the evidence on each disputed question, stated the version he believed, and
explained in detail why he found the Agencys version more credible than Appellants. IAF-2,
Tab 83 at pp. 17-18.
E. The Administrative Judge correctly deferred to the Agencys choice of
penaltyremoval, which was within the parameters of reasonableness.

The Agencys penalty determination is entitled to deference and should be reviewed only
to determine whether it is within the parameters of reasonableness. Payne v. U.S. Postal Serv.,
72 M.S.P.R. 646, 650 (1996). The Boards function with regard to its review of an agencys
penalty selection is not to displace managements responsibility but to determine whether
management exercised its judgment within the tolerable limits of reasonableness. Cameron v.
Dept of Justice, 100 M.S.P.R. 477, 482 (2005). In this case, removal is well-within
reasonableness.
1. The Administrative Judge correctly found a nexus to the efficiency of
the service.

That a nexus exists between Appellants misconduct and his removal to promote the
efficiency of the service cannot seriously be disputed. Nonetheless, Appellant argues that the
Administrative Judge implicitly found that it was his cited misconduct that increased the
efficiency of the service, rather than his removal. PFRF, Tab 3 at p. 47.
Appellants rationalization defies common sense, and he contradicts himself. See Hillen
v. Dept of Army, 35 M.S.P.R. at 458. Appellant emphatically testified, If I told somebody that
a particular flight was not going to have any protection on it, that endangered that specific
flight. Tr. at 104. And yet, that is exactly what Appellant did. He told a journalist that remain
15
overnight missions out of Las Vegas would not have Federal Air Marshals on board, and by his
own account, he endangered those specific Las Vegas flights.
In turn, the Administrative Judge properly found that Agency resources were necessarily
reallocated to address those very flights that Appellant disclosed would no longer have FAM
coverage aboard. IAF-2, Tab 83 at pp. 26-27. At hearing, the deciding official explained the
reality of the situation, that in Appellants position, Appellant was not privy to the type of
information that higher-level Agency officials relied upon in deciding how to allocate finite
resources. Tr. at 20. As further discussed below, Appellant always had the right to express his
oppositionhe just needed to do so without divulging SSI.
2. The Administrative Judge correctly found that the deciding official
considered the relevant factors and that a mitigated penalty was
unwarranted.

The record fully supports a finding that the deciding official considered the relevant
Douglas factors. The Initial Decision correctly noted that the deciding official considered the
nature and seriousness of the offense, inasmuch as Appellants disclosure directly related to
Appellants law enforcement duties, position, and responsibilities as a Federal Air Marshal.
IAF-2, Tab 83 at p. 30. Appellant cannot deny that he intentionally contacted a news reporter, to
purposely convey information about the absence of FAMS deployment. That this information
constituted Sensitive Security Information also cannot be disputed. See MacLean, 543 F.3d
1145.
The Ninth Circuit already rejected Appellants excuse that he remained unaware that
what he disclosed constituted Sensitive Security Information because it lacked any SSI marking.
With a simple common-sense observation, one justice commented from the bench: Youre
telling Mr. Osama bin Laden that there will be no air marshals anywhere on any of our airplanes
16
for the next 10 days. http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id0000000190

at 4:51-6:09 of audio file. The deciding official also testified about the obvious, that [a]soon as
[Appellant] gave that information out to the media, it created a vulnerability within the aviation
system. And it set us up for a possible another 9/11 incident. Tr. at 15.
Appellant himself echoed this same security assessment when he testified that if he told
somebody that a particular flight was not going to have any FAM protection, that that
endangered that specific flight. Tr. at 104. And yet, while recognizing this same clear danger,
Appellant stated under oath that he had NO REGRETS or feel NO REMORSE (IAF-1, Tab 4,
Subtab 4J at p. 13 (emphasis in original)) or that he even cared whether the information
conveyed was Sensitive Security Information. Hearing Ex. 8 at p. 2; also see Hillen, 35
M.S.P.R. at 458. Thus, the deciding official properly determined that Appellants actions were
intentional and as such, could not be mitigating. Tr. at p. 15.
The absence of any malice or gainful motive or any repeated disclosures of SSI failed to
mitigate the penalty to a lesser penalty and rightfully so. Tr. at 16. Appellant was a law
enforcement officer whom, by virtue of his position, the public trusted (Tr. at 18-19), and the
deciding official properly held him to that higher standard. See Scott v. Dept of Def., 69
M.S.P.R. 211 (1995). Most significantly and as previously discussed, Appellant testified about
his FAMS training and experience with Sensitive Security Information, which was to such a
degree that he undeniably had warning about the conduct in question and in fact, received (but
chose not to read in its entirety) the Agencys policy to safeguard SSI. Tr. at 71. Appellants
argument that he never received actual notice of the Agencys policy to safeguard SSI is baseless
as Appellant is charged with knowing the law, including the applicable SSI regulation in this
17
case. See Stearn v. Dept of Navy, 280 F.3d 1376 (Fed. Cir. 2002) (applying constructive notice
of regulations).
The record further shows that the deciding official properly considered the other relevant
Douglas factors and found them to be mitigating: that Appellant lacked any prior discipline, his
work history, his length of service, and his satisfactory performance on the job. Tr. at 14, 17.
Such mitigating factors, however, failed to outweigh the seriousness of Appellants admitted
misconduct, for which Appellant lacked any remorse whatsoever. See, e.g., Ramirez v. Dept of
Homeland Sec., 2007 M.S.P.R. 4254 (2007) (law enforcement officers lack of remorse and
rationalizations weighed against rehabilitative potential).
And, while other Federal Air Marshals from other FAMS field offices may have
disclosed Sensitive Security Information, the circumstances in which they did so was never
known to the deciding official at the time of his decision and more significantly, were so
substantially different that no valid comparison exists. See Woebcke v. Dept of Homeland Sec.,
M.S.P.B. Docket No. NY-072-09-0128-I-1 (2010). Indeed, Appellants comparisons to Frank
Terreri, another vocal member of the Federal Law Enforcement Officer Association, is not valid.
Unlike Appellant, Terreri did not disclose SSI, and as further discussed below, Terreri remains
with the Agency and continues to report to the deciding official.
The Administrative Judge properly distinguished the remaining alleged comparators. In
the case of J.S., this employee disclosed his and his partners FAM identity to a fellow aircraft
passenger. IAF-2, Tab 43, Subtab MM (Appellants Response to Statement of Facts). J.S. made
this disclosure to avoid a panic when the passenger observed his weapon. Id. at pp. 84-85. In
the case of J.M, this employee disclosed his own FAMS-flight scheduling to coordinate romantic
rendezvous with flight attendants. IAF-2, Tab 49 (Appellant Response to Pre-Hearing
18
Submissions). Both disclosures are limited in scope and cannot be compared to Appellants
broadcast to the public (and terrorists) at large.
While another comparator, A.R., made his disclosure on the Internet, his conduct was
dissimilar to Appellant because he posted only his speculation that FAMS coverage for a
particular flight route was to be cancelled. IAF-2, Tab 42 at Subtab F (Appellants Response to
Statement of Facts). Unlike Appellant who verified the nature of the information he received
prior to sharing it with a news reporter, A.R. did not know if the second or third-hand
information of what he posted was accurate, as his motivation to make such a posting was to
receive confirmation of the information contained therein. Id. at pp. 149-150, 158-159, 160-162,
180. Also, unlike Appellant, A.R. repeatedly expressed regret and recognized his grievous error
in judgment. Id. at pp. 150, 159, 161-162, 180. A.R.s removal was proposed but mitigated to a
14-day suspension by another deciding official at another field office. Id. at pp. 176, 185. The
disciplinary decision letter noted how the deciding official placed a great of weight on A.R.s
demonstrated sincere remorse (at p. 186)a mitigating factor clearly absent in Appellants case.
Thus, A.R.s lower level of discipline reflected how that deciding official believed A.R. had the
potential to be rehabilitated. In stark contrast here, Appellant testified, It did not matter to me
whether it was confidential, law enforcement sensitive, SSI, or classified information. Hearing
Ex. 8. Appellants defiance is unequivocal and shows, without question, how both the deciding
official and administrative judge appropriately determined Appellant to be a poor candidate for
rehabilitation.
Finally, the short delay in the disciplinary process did not undermine the fact that the
deciding official understandably lost trust in Appellant. See, e.g., Wilkes v. Veterans Admin., 6
M.S.P.R. 732 (1981) (removal sustained, even in light of good performance for four years after
19
misconduct); also, e.g., Jiggetts v. Dept of Treasury, 48 M.S.P.R. 252, 256 (1991) (that the
agency permitted employee to remain in position for eight months while it investigated a theft
was not mitigating when removal was proposed within two months from the time the agency
concluded that the employee committed the theft). Therefore, the record evidence amply
supports the Administrative Judges finding that the deciding official properly considered the
relevant Douglas factors and that removal was within the realm of reasonableness.
F. Appellant failed to prove a prohibited personnel practice.
The record further shows that Appellant failed to provide any of his affirmative defenses.
1. The Agencys interest in protecting SSI outweighs other interests.

The Administrative Judge properly determined that when balancing Appellants free
speech interest with the needs of the Agency, as a governmental employer, to attempt to perform
its important public function, the Agency must have wide latitude in managing their offices,
without intrusive oversight by the judiciary in the name of the First Amendment. Mings v.
Dept of Justice, 813 F.2d 384, 387 (Fed. Cir. 1987); Smith v. Dept of Transp., 106 M.S.P.R.
59, 46 (2007); also see Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Pickering v. Board of
Educ., 391 U.S. 563 (1968).
Assuming for the purposes of this discussion that Appellants disclosure was a matter of
public concern, the inquiry becomes whether the specific governmental interest in this case
maintaining the confidentiality of the deployment of FAMswas harmed. Undoubtedly so, as
soon as the Appellant made his disclosure to a journalist: It created vulnerability as soon as he
made the disclosure. That would be the harm. Tr. at 44. Appellant himself acknowledged this
undeniable harm and admitted at hearing that disclosing SSI iswould endanger my life or
other peoples life. Tr. at 108:8-10, 119:7-8.
20
Should the Agency or any other governmental employer be prohibited from imposing
discipline for unauthorized SSI disclosures, there would be no deterrence whatsoever. By
analogy, the Agency cites to cases where it has been recognized that, there is no First
Amendment right to have confidential, sealed or classified information leaked to the public.
United States v. Koubriti, 307 F. Supp. 2d. 891, 900 (E.D. Mich. 2004); also see Snepp v. United
States, 444 U.S. 507, 508-09 & n.3 (1980) (sustaining restrictions on the publication of
confidential information by former CIA employee, regardless of whether the materials were
actually classified); United States v. Aguilar, 515 U.S. 593, 606 (1993) (As to one who
voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not
subject to the same stringent standards that would apply to efforts to impose restrictions on
unwilling members of the public.); Am. Library Assn v. Faurer, 631 F. Supp. 416 (D.C. 1986)
(no First Amendment right exists where disclosure of classified information would possibly
endanger the national security, even though the information had been previously in the public
domain).
Moreover, that the Agency used unencrypted work cell phones to disseminate SSI in this
instance never lessened the governments interest or otherwise tipped the balance in Appellants
favor. Appellants testimony that the Agencys transmission of SSI to FAMs on their
government-issued cellular phones somehow created a public forum is nothing more than
speculation and unsupported by the record of evidence. Tr. at 115:23-25. Rather, Appellants
choice to disclose SSI to a news reporter was the bullhorn in a public plazanot the Agencys
use of its cellular telephones to communicate quickly with its workforce. Tr. at 86; PFRF, Tab 3
at p. 31.
21
In sum, when Appellant disclosed the substance of the text message to a news reporter,
he disclosed exactly which flights would be unprotected by the Federal Air Marshal Service. As
a result of Appellants misconduct, the Agency effectively lost its discretion to determine when
and where to deploy Federal Air Marshals, and the Agency necessarily needed to make
adjustments to its FAMS coverage. Tr. at 45; IAF-2, Tab 83 at pp. 26-27 (Initial Decision).
Applying the balancing test, the governmental interests in the protection of SSI and the efficient
deployment of FAMs overwhelmingly outweighs any free speech interest that Appellant may
enjoy.
2. Appellant did not prove retaliation for union activity.

Finally, the Administrative Judge correctly found that Appellant failed to prove his
affirmative defense that he suffered retaliation for engaging in protected union activity. As noted
in the October 8, 2009 Order, Appellants actions in support of the non-union Federal Law
Enforcement Officers Association (FLEOA) do not constitute protected activity (IAF-2, Tab 64
at p. 5 and fn.3 (Order, dated Oct. 8, 2009)), but even if they did, Appellant failed to establish a
genuine nexus between his activities in support of FLEOA and his removal. Although the
deciding official was aware of Appellants leadership position in FLEOA, Appellant failed to
establish by preponderant evidence that the Agency initiated its investigation into Appellants
misconduct or otherwise removed him on the basis of his FLEOA activities.
Rather, Appellant acknowledged and the Administrative Judge noted that Appellants
unauthorized media appearance on NBC Nightly News (Tom Brokaw) (Tr. at 93:20-23)
precipitated an investigation by the Agency, and that during that investigation, Appellant
volunteered that he made an earlier and separate disclosure of information to MSNBC (Brock
Meeks). IAF-1, Tab 4, Subtab 4J at p. 11; IAF-2, Tab 83 at p. 23. Appellant appeared on
22
television in disguise; it was only by chance that a colleague recognized his voice and then, it
was only by luck that the Agency learned of Appellants separate disclosure to the news reporter,
which he made more than a year earlier. IAF-1, Tab 4, Subtab 4J at pp. 8, 11. No disciplinary
action was taken as a result of Appellants television appearance. IAF-1, Tab 4, Subtab 4A at
p. 2.
There is no evidence that this investigation was retaliatory. And, but for Appellants
verbosity during the investigative interview, the Agency would never have known that Appellant
made the SSI disclosure to a news reporter. The evidence of record supports a finding that
Appellants SSI disclosure was an intervening factor that broke any causal relationship, however
remote, between his FLEOA activities and the removal action. See, e.g., Dunning v. National
Aeronautics & Space Admin., 10 M.S.P.R. 183, 186 (1982) (where act of insubordination was
intervening factor between protected activity and agencys action).
Appellants reliance on Russell v. Department of Justice, 76 M.S.P.R. 317, 325-325
(1997) and Johnson v. Department of Justice, 104 M.S.P.R. 624, 631 (2008) is misplaced.
3
3
Appellant also inappropriately cites to Geyer v. Dept of Justice, 116 F.3d 1497 (Fed. Cir. 1997) (Table),
an unpublished opinion and as such, without any precedential value. PFRF, Tab 3 at p. 56.

PFRF, Tab 3 at p. 55. Russell triggered the Boards jurisdiction under Section 2302(b)(8) as a
whistleblowing claim (76 M.S.P.R. at 322), and as discussed earlier, the Board already
determined that the Whistleblower Protection Act does not apply in this instance. Likewise,
Johnson involved an individual right of action, which was before the Boards jurisdiction only by
virtue of the WPA, deemed inapplicable here. 104 M.S.P.R. at 624. Appellants further reliance
upon the Agencys alleged treatment of Frank Terreri also fails to support his argument. Terreri
served as the president of the Air Marshals Chapter for FLEOA; as noted above, he has never
23
been charged with the unauthorized disclosure of SSI, and he remains employed with the
Agency. Tr. at 60:10-12.
Therefore, the evidence of record does not support a finding that the Agency removed
Appellant because of his FLEOA-related activities; rather the evidence supports a finding that
the gravity of Appellants misconduct far surpassed any possible motive to retaliate against him.
See generally, e.g., Haack v. U.S. Postal Serv., 68 M.S.P.R. 275, 282 (1995).
V. CONCLUSION
Appellant failed to provide a compelling reason to include additional evidence into this
already extensive record, which includes no less than a Ninth Circuit ruling and the Boards prior
decision on interlocutory appeal. In carefully reviewing such an extensive record, the
Administrative Judge properly defined the Agencys disciplinary charge and correctly
determined that the Agency established the requisite nexus and the reasonableness of its
disciplinary penalty by preponderant evidence. Finally, Appellant failed to carry his burden to
prove any of his affirmative defenses.
Accordingly, the Board should uphold the disciplinary penalty of removal for Appellants
intentional disclosure of security information to a news reporter, when such information was
meant only for those with a regulatory need to know.

Respectfully Submitted,

/s/ Eileen Dizon Calaguas

Eileen Dizon Calaguas
Agency Representative
Certificate Of Service
e-Appeal has handled service of the assembled pleading to MSPB and the
following Parties.
Name & Address Documents Method of Service
MSPB: Office of the Clerk of
the Board
Response to
Appellant's Corrected
PFR dated 6/21/2010
e-Appeal / e-Mail
Robert J. MacLean
Appellant
Response to
PFR dated 6/21/2010
e-Appeal / e-Mail
l agree to send a printed copy of the electronic pleading with attachments to
non-efilers by the end of next business day, as follows:
Name & Address Documents Method of Service
Thomas Devine, Esq.
Appellant Representative
Response to
US Postal Mail
Government Accountability
Project 1612 K Street, NW,
Suite 1100
Washington, DC 20006
USA
PFR dated 6/21/2010
Larry A. Berger, Esq.
Appellant Representative
Mahon and Berger 21 Glen
Street, Suite D
Glen Cove, NY 11542
Response to
PFR dated 6/21/2010
US Postal Mail

MacLean v. DHS: MSPB Agency Response To MacLean Petition For Review - August 2, 2010

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MacLean v. DHS: MSPB Agency Response To MacLean Petition For Review - August 2, 2010

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ROBERT J. MACLEAN v.

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES OF AMERICA

. . and that your previous performance appraisals were

[P]eople would tend to have less confidence in the ability of the

wouldnt be some obscure security regulation that you would

which has only a tangential relation to MacLeans interest in his position

Reason 3 charges FAM McClean [sic] with unauthorized disclosure of

Despite a new denial that he informed a news reporter that RON

for the next 10 days. http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id0000000190

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